MEMORANDUM OPINION AND ORDER

RICHARD KYLE, District JudgePage 2

Introduction

While cleaning Defendant Trus Joist MacMillan's ("TJM") industrial furnace, Plaintiff Troy Solo was engulfed by hot ash and severely burned. The furnace was manufactured by Defendant Wellons, Inc. ("Wellons"). Solo and his spouse, Holly Solo, have sued TJM alleging negligence per se and negligence. They have also sued Wellons alleging strict liability, negligence, and breach of implied warranties. Before the Court are TJM and Wellons's summary judgment motions. For the reasons set forth below, themotions will be granted in part and denied in part.

Background

I. The Parties

TJM, a Delaware limited partnership with its principal place of business in Boise, Idaho, owns and operates a manufacturing plant in Deerwood, Minnesota. The primaryenergy source of TJM's plant, which makes laminated strand board, is a wood-firedfurnace manufactured by Wellons. (TJM Answer at 3.) During operation, the furnacegenerates ash that must be disposed, and Beltrami Industrial Services, Inc. ("Beltrami") has cleaned and repaired the furnace since the plant opened. (Buchman Aff. in Opp'n toTJM Ex. 3 (Rogers Dep. Tr. at 54-55); id. Ex. 8 (Forseth Dep. Tr. at 49-51, 58).) OnSeptember 26, 2000, Solo, an employee of Beltrami, was buried by hot ash while cleaning TJM's furnace and was burned from his waist down. (Id. Ex. 20 (Solo Dep. Tr. at 75-77); id. Ex. 7 (Edwards Dep. Tr. at 55-56).)

II. TJM's Furnace

TJM's Deerwood plant was constructed in 1990-91. (Rogers Dep. Tr. at 16.)Installed in its plant is a Wellons furnace, which Wellons sold to TJM in 1990. (Buchman Aff. in Opp'n to TJM Ex. 2 (Nye Dep. Tr. at 16).) The furnace burns woodby products and waste in four combustion cells. Between each combustion cell is an ashdropout chamber where ash settles. (Rogers Dep. Tr. at 30-31.) This chamber is six feetwide, ten feet deep, and ten-and-a-half feet tall. (Buchman Aff. in Opp'n to TJM Ex. 26 (Smoot Harding Report at 2).) Leading away from the chamber is a pair of inclinedducts-one leads to two dryers that dry wood chips before further processing, and theother leads to a convective oil section that uses heated oil to run TJM's steam presses.(Id.) For the purposes of this litigation, the focal part of the furnace is the inclined ductthat connects the ash dropout chamber with the two dryers. This inclined duct slopesupward at a 45° angle for twenty feet and is six feet wide and eight feet tall. (Harding Smoot Report at 2; see Drysdale Aff. Exs. 3, 4 (furnace diagrams).) The duct can beaccessed at the bottom of the furnace through two small doors in the ash dropoutchamber, or by a door in the top of the duct work that was added by TJM and Beltrami prior to Solo's accident. (Forseth Dep. Tr. 36-37, 94-95; Rogers Dep. Tr. 113, 330-33.) The bottom doors are twelve by eighteen inches and arch to fifteen inches in the center. (Harding Smoot Report at 2.)

While operating, the furnace normally runs at temperatures ranging from 1400°F to 1650°F. It produces several tons of ash each day. (Buchman Aff. in Opp'n to TJM Ex.5 (Chenard Dep. Tr. at 114-15); Nye Dep. Tr. at 69.) When the furnace temperature rises above 1700°F or 1800°F, however, the ash changes from a fine, flowable consistency to atarry, sticky substance known as "clinkers." (Rogers Dep. Tr. at 47-48, 122-23; Nye Dep.Tr. at 50-51.) This sticky ash adheres to the furnace and its duct work in a process called "slagging." Slagging is undesirable because it requires additional cleaning and maintenance, and it harms the furnace's performance. (Nye Dep. Tr. at 50-51.) Indesigning its furnace, Wellons anticipated that ash would accumulate throughout thefurnace. (Id. at 40-41, 68.)

III. TJM Hires Beltrami to Clean its Furnace

As a result of ash build-up, TJM hired Beltrami to clean its furnace annually. (Rogers Dep. Tr. 161-62; Forseth Dep. Tr. 22-24.) Beltrami's experience included repairing and cleaning a Wellons furnace at another company's facility. (Rogers Dep. Tr.at 20, 40.) For Beltrami to clean the furnace, TJM must shut it down. TJM created a shutdown schedule by which the furnace would cool 72 hours before cleaning. (Buchman Aff. in Opp'n to TJM Ex. 27 (Shutdown Schedule); Rogers Dep. Tr. at 73-74, 190; Forseth Dep. Tr. at 28.) Because ash is an insulator, the surface may be cool while the underlying ash is hot. (Forseth Dep. Tr. at 132-35.) Even after 72 hours, the ash canremain hot. (Id. at 153.)

Before Beltrami personnel were allowed to enter the furnace, Beltrami's President, Randy Forseth, would conduct a pre-cleaning inspection. (Forseth Dep. Tr. at 36, 174.) At times, TJM personnel, including Al Rogers, TJM's Maintenance Manager, wouldaccompany Forseth. (Id. at 36.) In addition, because the furnace is considered a confinedspace under the Occupational Safety and Health Act ("OSHA"), TJM was required toissue a confined space permit before allowing Beltrami to enter. (Id. at 37.)

Once deemed safe, Beltrami employees would enter the furnace. They would attempt to clean the inclined duct from either the top down or the bottom up. (Forseth Dep. Tr. at 41, 140-41.) TJM did not require Beltrami to clean from a particular direction and did not restrict its ability to do the work in the way it saw fit. (Id. at 153.) Workingfrom either direction, Beltrami employees would use a pick and a shovel to dig the ashloose and feed it into a vacuum hose. (Id. at 32.) Because of slagging, much of the ashinside the furnace would be hard, requiring it to be chipped and chiseled before removal. (Rogers Dep. Tr. at 54-55; Forseth Dep. Tr. at 32, 46.) Forseth testified that because"[e]verything was so solid" a jackhammer would sometimes have to be used to removethe ash. (Forseth Dep. Tr. at 46;id. at 171; see Edwards Dep. Tr. at 16-17.) Despite the 72-hour cooling off period, the pre-cleaning inspection, and the issuance of a confined space permit, Beltrami personnel would still encounter ash as hot as 180°F. When encountering ash at that temperature, they would step away and allow it to cool further. (Id. at 72, 132-35; Edwards Dep. Tr. at 95-96.)

IV. Changes Are Made to the Furnace in 1999

Responding, in part, to the slagging problems, TJM and Wellons, in 1999, added two radiate and oil thermal units ("ROTUs") to the furnace to reduce temperatures below the slagging range. (Nye Dep. Tr. at 127-29; Rogers Dep. Tr. at 102-07.) These changes altered both the ash temperature and the air velocity in the furnace. (Buchman Aff. in Opp'n to TJM Ex. 16 (Russell Report at 13).) Wellons intended these changes to reduces lagging and realized that this could result in higher accumulations of ash in the inclineduct. (See Nye Dep. Tr. at 182-88.) After the 1999 changes, the ash deposited in theincline duct was fine, flowable, and fluid. (Rogers Dep. Tr. at 217; Smoot Harding Report at 5-7; Buchman Aff. in Opp'n to TJM Ex. 23 (McKinney Report at 5-7).)

Neither Wellons nor TJM advised Beltrami's workers, including Solo, of theeffects these changes would have on ash consistency, nor was the shutdown procedure modified. (Edwards Dep. Tr. at 30; Forseth Dep. Tr. at 61-62; Buchman Aff. in Opp'n to TJM Ex. 9 (Helmers Dep. Tr. at 63-65).) Although Forseth knew that TJM had installedthe ROTUs (Forseth Dep. Tr. at 52), he did not know the effect these changes would haveon the ash or on the safety of his personnel (Id. at 61-62). While Wellons knew that cleaning personnel would still be required to enter its furnace (Buchman Aff. in Opp'n toTJM Ex. 11 (Kinsley Dep. Tr. at 47)), and recognized that there was a risk of engulfmentif there was ash present in the incline duct (Id. at 49-52), it did not provide instructions onhow to enter the ash dropout chamber (Id. at 48, 51; Nye Dep. Tr. at 101).

V. The 2000 Cleaning and Resulting Injury

On September 23, 2000, TJM shut its furnace down for the first time after the 1999 modifications. (McKinney Report at 3; Solo Dep. Tr. at 53.) TJM's shutdown schedule detailed what cleaning and repairs were to be done, when they were to be completed, and who was responsible for completing them. (Buchman Aff. in Opp'n to TJM Ex. 27 (Shutdown Schedule).)

On September 25, 2000, Forseth and Rogers undertook a five minute pre-cleaning inspection. (Rogers Dep. Tr. at 138, 147.) Entering from the top door, they walked down the duct work looking for any furnace damage that may have occurred since the lastinspection. (Id. at 138.) Although Rogers observed "lots of ash in this area" — so muchso that he could not proceed to the incline duct for observation — it did not appear to himto be any different than in the past. (Id. at 139-41.) He was not concerned about the ashin the incline duct, and did not expect it to flow, "[b]ecause it had never flown before." (Id. at 141, 142.) Nor did Forseth notice anything different about the ash. (Forseth Dep.Tr. at 71-72.) After the pre-cleaning inspection, Forseth told his personnel that "it lookedokay" and "[t]hat we went through and we didn't find anything wrong or anythingdifferent and just the same old thing as we did over and over. Just clean it." (Id. at 174-75.)

On September 26, 2000, the day Solo was injured, TJM's Safety Supervisor, GaryKnutson, issued confined space permits, pursuant to OSHA regulations, specifying thelocation and duration of the work to be performed and verifying that the conditions in the furnace were safe and that Beltrami personnel had proper safety equipment. (Solo Dep.Tr. at 66;see Buchman Aff. in Opp'n to TJM Ex. 10 (permits attached to RogersInvestigative Report).) No one could enter the furnace without such a permit. (BuchmanAff. in Opp'n to TJM Ex. 34 (Knutson Dep. Tr. at 43-44)). In preparation for issuing the permits, Knutson also measured the air temperature and quality. (Solo Dep. Tr. at 66; see Buchman Aff. Ex. 10.) In doing so, Knutson relied on temperature sensors located in thefurnace, although he knew that these sensors would not necessarily measure the ashtemperature. (Knutson Dep. Tr. at 128, 131-32.) Prior to Solo entering the furnace, Knutson informed him that the furnace was not hot. (See Solo Dep. Tr. at 66.)

After receiving TJM's permit, Solo and Ken Shockley, a Beltrami co-worker, entered the ash dropout chamber from the bottom doors, while Blake Edwards, another Beltrami co-worker, remained outside. (Edwards Dep. Tr. at 46-49; Solo Dep. Tr. at 68.) As Solo and Shockley began cleaning, Edwards saw nothing out of the ordinary. (Edwards Dep. Tr. at 49.) Although the ash appeared looser on its surface than normal, he assumed that it was harder underneath. (Id. at 51.) Shockley also noticed that the as happeared to be lighter, but likewise assumed that it would be hard underneath. (Buchman Aff. in Opp'n to TJM Ex. 19 (Shockley Dep. Tr. at 42, 57).) Although he had difficulty seeing, Solo observed the ash to be loose, but not different from his other experiences cleaning the furnace. (Solo Dep. Tr. at 69, 74.) In line with past experience, Solo and Shockley encountered hot spots in the ash and waited until they cooled. (Edwards Dep.Tr.at 85.)

After removing the ash near the access doors, Solo and Shockley began removingash from the bottom of the inclined duct. (Solo Dep. Tr. at 74-76.) Upon taking two or three shovelfuls from the slope of the inclined duct, ash slid down from the top and buriedthe vacuum hose. (Id. at 76.) As he was trying to dig out the hose, Solo heard Edwardsyell, "Get out of there." (Id. at 76-77.) Solo started running for the door, but "the pilejust exploded as soon as [Edwards] said that. [It] [j]ust avalanched down on us . . . and we both got buried." (Id. at 77.) Thus, within thirty minutes of entering the furnace, five to ten tons of hot ash slid down the inclined duct and buried Solo and Shockley.(Edwards Dep. Tr. at 55-56; Buchman Aff. in Opp'n to TJM Ex. 22 (Smoot Dep. Tr. at 60).) As soon as the dust settled, Edwards, who had remained outside the furnace, dug Solo and Shockley out. (Edwards Dep. Tr. at 55.) Although Shockley got out quickly, Solo was buried up to his waist in ash and suffered serious burns to his hands and lowerbody. (Solo Dep. Tr. at 80-84.) VI. OSHA Violation

As a result of Solo's injuries, the Minnesota Department of Labor and Industry, Occupational Safety and Health Division ("Department"), cited TJM for a "serious" OSHA violation. (Buchman Aff. in Opp'n to TJM Ex. 17 (OSHA citation).) A "serious" violation occurs when "there is a substantial probability that death or serious physical harm could result." 29 U.S.C. § 666(k). Specifically, the Department found TJM inviolation of 29 C.F.R. § 1910.146(d)(2) (3). (Buchman Aff. in Opp'n to TJM Ex. 17.) TJM's citation read:

The employer did not identify and evaluate the hazards of permit spaces before employees enter them and develop and implement the means, procedures and practices necessary for safe permit space entry operations:

For the cleaning operation of the interior of the WELLONS furnace, located at the Trus Joist manufacturing facility, where modifications had been made to the furnace operation, and adequate re-evaluation of hazards had not been done priorto cleaning personnel entering the confined space. Trus Joist was the hostcompany for this operation and issued the confined space entry permit.

(Id.)

Pursuant to a settlement agreement, however, the Department revised TJM'sviolation to "non-serious." (Drysdale Reply Aff. Ex. 5 (Revised OSHA Violation).) Asrevised, the Department found TJM in violation of 29 C.F.R. § 1910.146(f)(7). (Id.) Thecitation was changed to read: "The confined space entry permit for the cleaning of theinterior of the WELLONS furnace located at the Trus Joist manufacturing facility did notsufficiently identify the hazards of the permit space to be entered." (Id.) In the settlementagreement, however, TJM did not admit that it violated the cited standard. (Id.)

Standard of Review

Summary judgment is appropriate if there is no genuine issue of material fact andthe moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. It isto be granted only where the evidence is such that no reasonable jury could return averdict for the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 250(1986). The Court views the evidence, as well as all reasonable inferences, in a lightmost favorable to the nonmoving party. See Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996); see Adkinson v. G.D. Searle Co., 971 F.2d 132, 134 (8th Cir. 1992). The moving party carries the burden of showing that there is no genuine issue ofmaterial fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Mems v. City ofSt. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). Thenonmoving party, however, may not rest upon the allegations or denials of its pleadings.Rather, the nonmovant must establish the existence of specific facts that create a genuineissue for trial. Neither mere allegations nor denials are sufficient. See Liberty Lobby, 477 U.S. at 256. On summary judgment, however, the court does not weigh facts ordetermine the credibility of affidavits and other evidence. See id. at 249.

Analysis

Solo has sued both TJM and Wellons. Against TJM, Solo alleges that: (1) TJM's OSHA violation constitutes negligence per se (Count IV), (2) TJM negligently breachedits duty to exercise reasonably careful supervision of the jobsite (Count V), and (3) TJM negligently breached its duty as a landowner to warn (Count V). (See Pl.'s Mem. inOpp'n to TJM at 18, 22, 30.) Against Wellons, Solo alleges: (1) strict liability fordefective design and failure to warn (Count I), (2) negligence for defective design and failure to warn (Count II), and (3) breach of implied warranties (Count III). (See Pl'sMem. In Opp'n to Wellons at 15, 28, 33.) TJM and Wellons have moved for summaryjudgment on all claims. The Court will take each motion in turn.

I. TJM's Motion for Summary Judgment

A plaintiff in a negligence action must prove: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of the duty being the proximate cause of the injury. Gradjelick v. Hance, 646 N.W.2d 225. 230 (Minn. 2002). Whether alegal duty exists is generally a question of law for the court. Canada ex rel. Landy v. McCarthy, 567 N.W.2d 496, 504 (Minn. 1997). "However, where the existence of a dutyturns upon contradicted facts, those facts must be submitted to a jury for resolution priorto the court's legal conclusion on the issue." Reimer v. City of Crookston, 326 F.3d 957, 961 (8th Cir. 2003) (citing Gabrielson v. Warnemunde, 443 N.W.2d 540, 543 n. 1 (Minn. 1989); Johnson v. Urie, 405 N.W.2d 887, 891 n. 5 (Minn. 1987)). A legal duty may beimposed by a statute or by common law. Doe v. Brainerd Int'l Raceway, Inc., 533 N.W.2d 617, 620 (Minn. 1995). The Court will begin with Solo's negligence per seclaim.

A. Negligence Per Se

Solo alleges that TJM's OSHA violation constitutes negligence per se. (Pl.'s Mem. in Opp'n to TJM at 30-35.) A violation of a statute or regulation gives rise to negligence per se if (1) the person harmed by that violation is within the intended protection of the statute and (2) the harm suffered is of the type the statute or regulationwas intended to prevent. Alderman's Inc. v. Shanks, 536 N.W.2d 4, 7 (Minn. 1995); Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 558 (Minn. 1977). Ifthese standards are met, then the statute or regulation "imposes a fixed duty of care, so itsbreach constitutes conclusive evidence of negligence." Pacific Indem., 260 N.W.2d at559.

The parties dispute whether Solo was a person intended to be protected by theapplicable OSHA regulations and whether a negligence per se claim can be asserted against TJM as the "owner" of the premises. Relying uponZorgdrager v. State Wide Sales, Inc., 489 N.W.2d 281, 284 (Minn.Ct.App. 1992), Solo contends that he was a person intended to be protected by the federal OSHA regulations governing confinedspaces. (Pl.'s Mem. in Opp'n to TJM at 21, 24-25, 30-35.)

TJM also relies upon Zorgdrager, and upon Behlke v. Conwed Corp., 474 N.W.2d 351, 359 (Minn.Ct.App. 1991), O'Neil v. Wells Concrete Prods. Co., 477 N.W.2d 534, 536-37 (Minn.Ct.App. 1991), and Shufelt v. Kraus-Anderson Constr. Co., No. C5-96-2065, 1997 WL 147444, at *3 (Minn.Ct.App. Apr. 1, 1997) (unpublished), and arguesthat it cannot be held negligent per se because it is the premises owner, not Solo'semployer. (TJM's Mem. in Supp. at 16-19; TJM's Reply Mem. in Supp. at 4-10.) Moreover, TJM contends that finding it negligent per se would be inconsistent with Congress's stated intention that OSHA does not enlarge or affect common law duties (Id. at 18 (citing 29 U.S.C. § 653(b)(4)); at most, its alleged OSHA violation may be relevantto the standard of care it owed under a claim of common law negligence (id).

The federal Occupational Safety and Health Act was enacted in 1970 in responseto the "drastic national problem" of work-related deaths and injuries. Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 444 (1977). Similarly, Minnesota enacted its own OSHA statute in response to the substantial "burdenon employers and employees of this state resulting from personal injuries and illnessesarising out of work situations." Minn. Stat. § 182.65, subd. 2. OSHA imposes duties onemployers to furnish employment, and a place of employment, free from recognized hazards likely to cause death or serious harm to its employees. 29 U.S.C. § 654(a)(1); Minn. Stat. § 182.653, subd. 2. Employers must also comply with OSHA regulations promulgated under the statutes. 29 U.S.C. § 654(a)(2); Minn. Stat. § 182.653, subd. 3. Inpassing OSHA, however, Congress did not enlarge or affect the duties employers had atcommon law:

Nothing in this chapter shall be construed to supersede or in any manneraffect any workmen's compensation law or to enlarge or diminish or affectin any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

The Minnesota Supreme Court has not resolved this issue of whether a premisesowner can be negligent per se for OSHA violations resulting in injuries to non-employees. Upon a careful reading of the cited Minnesota Court of Appeals cases, thisCourt concludes that the law in Minnesota is that premises owners cannot be heldnegligent per se under these circumstances. See Zorgdrager, 489 N.W.2d at 284;Behlke, 472 N.W.2d at 359; Shufelt, 1997 WL 147444, at *2-3; see also Banovetz v. King, 66 F. Supp.2d 1076, 1081 (D. Minn. 1999) (Erickson, Mag. J.) ("OSHA only governs dutiesthat are owed by an employer to an employee, and not duties between [an] employer anda third-party." (citation omitted)). An OSHA violation, however, may be used asevidence of a standard of care for the jury to use in determining the negligence of theparties.O'Neil, 477 N.W.2d at 537. This result is buttressed by Congress's statedintention that OSHA does not "enlarge or diminish or affect . . . common law . . . duties, or liabilities." 29 U.S.C. § 653(b)(4). As the Second Circuit Court of Appeals observed:

Allowing an OSHA violation to constitute negligence per se clearly affectsthe employer's liability by transforming the character of the factfinder'sinquiry into the applicable standard of care. In the absence of a per se rule, OSHA is simply evidence of the standard of care, the violation of whichmay be accepted or rejected as proof of negligence by the trier of factaccording to the sum total of all the evidence.

B. Common Law Negligence

1. Duty to Supervise

Solo alleges TJM breached its duty to exercise reasonably careful supervision overthe jobsite. (Pl's Mem. in Opp'n to TJM at 18.) A "[hiring] company may be directlyliable for its own personal negligence that causes injury to an independent contractor'semployees."Sutherland v. Barton, 570N.W.2d 1, 5 (Minn. 1997) (citingConover v. N. States Power Co., 313 N.W.2d 397, 401 (Minn. 1981)). Specifically, this personalnegligence may consist of a breach of a duty to exercise reasonably careful supervision ofa jobsite where employees of the independent contractor are working and the hiringcompany retains detailed control over its work. Id.; Conover, 313 N.W.2d at 401. "Forliability to attach, the [hiring] company must retain control over the `operative detail' of the work."Sutherland, 570 N.W.2d at 5 (citing Restatement (Second) of Torts § 414 cmt. a (1965)). The Minnesota Supreme Court has defined the requisite level of control:

It is not enough that [the company] has merely a general right to order thework stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. . . . There must besuch a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

The parties dispute whether TJM retained the requisite level of control that givesrise to a duty to exercise reasonably careful supervision of the jobsite. TJM contends that it never guided Solo's employer, Beltrami, as to how to perform its work and did notcontrol the operative details of furnace cleaning. Rather, it asserts, that Beltramiexercised control over all material aspects of the manner and method of its work. (TJM'sMem. in Supp. at 14.) Solo, in contrast, argues TJM exercised control over the operativedetail of the furnace cleaning by, inter alia, determining when to shut the furnace down, developing a detailed shutdown schedule, and issuing the confined space permit. (Pl's Mem. in Opp'n to TJM at 19-22.)

The Court finds that the existence of TJM's duty to supervise turns upon disputedfacts that must be resolved by a jury. See Reimer, 326 F.3d at 961. When viewed in thelight most favorable to Solo, the evidence shows that TJM decided when to shut itsfurnace down for cleaning, TJM developed a detailed shutdown schedule governingSolo's work, and, by issuing the confined space permit, TJM was the gatekeeper to Solo'sentry. While it is true TJM did not require Beltrami to clean from a particular direction, and that TJM did not totally restrict Beltrami's ability work, liability can attach if TJM "retains control over the operative detail of doing any part of the work." Restatement (Second) of Torts § 414 cmt. a (emphasis added). A reasonable jury could find that Solowas "not entirely free to do the work in his own way," Sutherland, 570 N.W.2d at 6, andthat TJM maintained control over the operative detail of Beltrami's work. The Court willdeny TJM's motion on this claim.

2. Landowner's Duty

Solo also alleges that TJM negligently breached its duty of care, as a landowner, topersons coming onto its premises. (Pl's Mem. in Opp'n to TJM at 22.) The dutyimposed on a land owner who hires an independent contractor is to inspect the premises for latent or hidden dangers and to warn oncomers of those dangers. Reimer, 326 F.3d at961-62 (applying Minnesota law); Conover, 313 N.W.2d at 401. That duty extends toemployees of independent contractors hired by the landowner.Reimer, 326 F.3d at 962; Conover, 313 N.W.2d at 401.

A landowner, however, is not liable for harm caused by known or obvious dangersunless the landowner should have anticipated the harm despite its obviousness. Sutherland, 570 N.W.2d at 7; Reimer, 326 F.3d at 962. For a condition to be "known," it "must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated." Louis v. Louis, 636 N.W.2d 314, 321 (Minn. 2001) (citation and internal quotations omitted). For acondition to be "obvious," "the question is not whether the injured party actually saw thedanger, but whether it was in fact visible." Id. (citation omitted). A condition is not"obvious" unless both the condition and the risk are apparent to, and would be recognizedby, a reasonable person "in the position of the visitor, exercising ordinary perception, intelligence and judgment." Id. (citation and internal quotations omitted).

TJM argues that Solo knew he would encounter hot ash and had observed that theash present on the day of the accident was looser than it had been in the past. (TJM'sMem. in Supp. at 14.) Solo responds that he did not know, and it was not obvious, that asa result of the 1999 changes the furnace would change the composition of ash throughoutthe furnace. (Pl's Mem. in Opp'n to TJM at 12, 23, 26-27.)

Viewing the evidence in a light most favorable to Solo, the Court determines thathe has raised genuine issues of material fact on this issue precluding summary judgment.A reasonable jury could find that Solo did not know that the ash was entirely loose andflowable. Those who inspected or cleaned the furnace — including Forseth, Rogers, Edwards, and Shockley — also saw nothing different about the ash on the day of theaccident or on the day before. In the words of TJM's Rogers, "[I]t turned out that . . .[Solo] did the job [to] the best of his capability, and there was a trap lurking there that wedidn't recognize and that he never recognized." (Rogers Dep. Tr. at 364.) Nor is there evidence that Solo appreciated the gravity of the harm that the loose ash posed or that thedanger was objectively obvious. The following facts, among others, demonstrate that areasonable person, exercising ordinary perception, intelligence, and judgment, would notnecessarily have recognized the loose ash: (1) the 1999 changes altered the furnace's ashconsistency; (2) although Solo, Edwards, and Shockley realized that some ash on the surface was loose, that was not unusual and they could not see that it was also loose under neath; and (3) Rogers and Forseth were not able to inspect the inclined duct because of the ash accumulation and the ash they did observe did not appear different from thehard ash in the past. In addition, TJM was cited for violating OSHA by not sufficiently identifying the furnace's hazards in its confined space permit. Although TJM disputes most of these facts, such factual disputes are precisely of the type that preclude summary judgment resolution.

Even if the danger were known or obvious, "landowners may still be liable to theirinvitees if they should anticipate the harm despite such knowledge or obviousness." Sutherland, 570 N.W.2d at 7 (quoting Restatement (Second) of Torts § 343 A) (internalquotation omitted). A landowner may anticipate the harm if it "has reason to expect thatthe invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparentrisk." Id. (citing Restatement (Second) of Torts § 343 A cmt. f); see Reimer, 326 F.3d at 964. Here, a jury could conclude that TJM would have had reason to expect that areasonable person in Solo's position would view the advantages of entering the furnace pursuant to TJM's shutdown schedule and confined space permit as outweighing anyapparent risk. Accordingly, in the face of this record, the Court cannot find-certainly onsummary judgment — that TJM lacked a duty of care to Solo. See Reimer, 326 F.3d at 965.

II. Wellons's Motion for Summary Judgment

A. Defective Design

Solo has alleged products liability claims against Wellons, under theories of strictliability and negligence, arguing that its design of the 1999 furnace changes was defectiveand unreasonably dangerous. (Pl.'s Mem. in Opp'n to Wellons at 15-19.) Under Minnesota law, to establish a products liability claim based upon a theory of defective design, a plaintiff must show that: (1) the product was in a defective conditionunreasonably dangerous to the user; (2) the defect existed when it left the manufacturer'scontrol; and (3) the defect was the proximate cause of the injury sustained. Drager ex rel.Gutzman v. Aluminum Indus. Corp., 495 N.W.2d 879, 882 (Minn.Ct.App. 1993); Westbrook v. Marshalltown Mfg. Co., 473 N.W.2d 352, 356 (Minn.Ct.App. 1991); see Bilotta v. Kellev Co., Inc., 346 N.W.2d 616, 623 n. 3 (Minn. 1984). In such cases, Minnesota merges the theories of strict liability and negligence, Piotrowski v. Southworth Prods. Corp., 15 F.3d 748, 751 (8th Cir. 1994) (applying Minnesota law), and fuses anegligence theory into a strict liability theory to determine whether a product wasdefective, Mozes v. Medtronic, Inc., 14 F. Supp.2d 1124, 1127 (D. Minn. 1998) (Kyle, J); Westbrook, 473 N.W.2d at 356. Thus, the first element — that the product was in adefective condition unreasonably dangerous to the user — is satisfied if the manufacturerfails to exercise

that degree of care in his plan or design so as to avoid any unreasonable riskof harm to anyone who is likely to be exposed to the danger when theproduct is used in the manner for which the product was intended, as wellas an unintended yet reasonably foreseeable use.

What constitutes "reasonable care" will, of course, vary with thesurrounding circumstances and will involve "a balancing of the likelihoodof harm, and the gravity of harm if it happens, against the burden of theprecaution which would be effective to avoid the harm."

Wellons argues that summary judgment is appropriate because Solo has notoffered sufficient evidence for a jury to find a defect in the furnace's design. (Wellons's Mem. in Supp. at 11, 13-14.) Solo responds that Wellons's 1999 furnace changes weredefectively designed because the ROTUs, which reduced the air velocity within thefurnace and lowered the temperature in the combustion chamber, caused the ash tobecome loose and flowable. (Pl's Mem. in Opp'n to Wellons at 16-17, 19.) Thisdesign defect, he alleges, rendered the furnace unreasonably dangerous to him.

Solo has not put forth sufficient evidence from which a reasonable jury could findthat Wellons's furnace design was in a defective condition unreasonably dangerous tohim. Specifically, he has failed demonstrate whether Wellons's choice of design struckan acceptable balance among several competing factors under the "reasonable-carebalancing test."Bilotta, 346 N.W.2d at 622; Kallio v. Ford Motor Co., 407 N.W.2d 92, 95 (Minn. 1987). Notably absent from his response to Wellons's summary judgmentmotion is any evidence that "balanc[es]. . . the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoidthe harm." Bilotta, 346 N.W.2d at 621. Without such evidence, a reasonable jury couldnot determine that Wellons's design was defective.

Furthermore, Solo has not shown a feasible, alternative design that would renderthe furnace safer. In Kallio, the Minnesota Supreme Court held that proof that a productis unreasonably dangerous generally requires a showing of a feasible, alternative saferdesign. 407 N.W.2d at 96; see Wilson, 1993 WL 724813, at *3. Thus, in design defectcases

Minnesota . . . maintains the requirement . . . that a plaintiff must establish not only that the product was in a defective condition, but also that it was unreasonably dangerous. . . . Obviously, a factor bearing upon the latterrequirement will be the existence or nonexistence of a feasible alternative design. To satisfy that requirement, the plaintiff ordinarily has the burden of showing the existence of an alternative design that was safer. . . . Toestablish a prima facie case that [the product in question] was unreasonably dangerous normally requires production of evidence of the existence of afeasible alternative safer design.

Solo offers the expert testimony of John M. McKinney who opines that a feasible, alternative safer design would have included additional upper access doors, additionalviewing and exterior air lancing ports, compressed air soot blowers, larger doors forthe dropout chamber, and detailed cool-down instructions. (Pl's Mem. In Opp'n toWellons at 17 (citing McKinney Report at 12).) No reasonable jury, however, could findthat any of these design proposals would have in fact made Wellons's furnace safer withrespect to Solo. First, the furnace was equipped with upper doors at the time of Solo'sinjury, but he chose not to use them. It therefore cannot be said that Wellons's failure toprovide for additional upper doors is a design defect in this case.See, e.g., Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993) ("The product neednot incorporate the best or most highly-advanced safety devices."); Larson v. General Motors Corp., 391 F.2d 495, 502 (8th Cir. 1968) ("[A] manufacturer is under no duty todesign an accident-proof or fool-proof product."); Marker v. Universal Oil Prods. Co., 250 F.2d 603, 605 (10th Cir. 1957) ("[T]he rule is well settled that neither designer normanufacturer has a legal duty to adopt or produce a process or product incorporating only features representing the ultimate in safety."). Second, Solo's expert has not established how the addition of viewing ports, air lancing ports, or soot blowers would have increased the furnace's safety with respect to Solo. See McCormack v. Hankscraft Co., 154 N.W.2d 488, 497 n. 3 (Minn. 1967) (finding evidence of an alternative safer design insufficient where experts failed to testify how the suggested changes would have prevented Plaintiff's injury); see also Alevromagiros, 993 F.2d at 420. Third, larger doorsfor the ash dropout chamber would not have made the furnace safer, given the rapid ratein which ash engulfed Solo. Large or small, door size was of no consequence to hisinjury. Finally, the provision of cool-down instructions goes not to Solo's design defect claim, but rather to his failure to warn claim, see infra Analysis II.B, which is a separatecause of action. Huber v. Niagara Mach. and Tool Works, 430 N.W.2d 465, 467 (Minn. 1988).

In sum, reasonable minds cannot differ on the issue of design defect in this case. Drager, 495 N.W.2d at 882 ("[W]here reasonable minds cannot differ [on whether aproduct is defective], the question becomes one of law."). Because of his failure toidentify Wellons's lack of reasonable care and his failure show a feasible, alternative safer design, Solo has not created a genuine issue of material fact with regard to whetherthe furnace was in a defective condition unreasonably dangerous to him. Accordingly, the Court will grant summary judgment for Wellons on Solo's design defect claim.

B. Failure to Warn

Solo also alleges that Wellons breached its duty to warn him of the dangers ofloose, flowable hot ash created by the 1999 furnace changes. (Pl's Mem. in Opp'n toWellons at 28-32.) Failure to warn is a cause of action separate from defective design. Huber, 430 N.W.2d at 467. The existence of a duty to warn is a question of law, while the adequacy of the warning, the breach of a duty, and causation are questions of fact for the jury. Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924-25 (Minn. 1986); Wilson, 1993 WL 724813, at *4. To determine whether a manufacturer has a duty to warn:

[T]he court goes to the event causing the damage and looks back to the alleged negligent act. If the connection is too remote to impose liability asa matter of public policy, the courts then hold there is no duty, and consequently no liability. On the other hand, if the consequence is directand is the type of occurrence that was or should have been reasonablyforeseeable, the courts then hold as a matter of law a duty exists.

Wellons argues that it did not have a duty to warn about the dangers in cleaningash from the furnace because Solo's injury was unforeseeable. (Wellons's Mem. inSupp. at 17, 20-21.) In contrast, Solo asserts that it was reasonably foreseeable to Wellons that its 1999 changes would create a danger of engulfment by loose ash. (Pl's Mem. in Opp'n to Wellons at 28-32.) "When the issue of foreseeability is clear, thecourts, as a matter of law, should decide it. In close cases, the question of foreseeability is for the jury." Whiteford v. Yamaha Motor Corp. U.S.A., 582 N.W.2d 916, 918 (Minn. 1998) (footnotes omitted). Viewing the evidence in a light most favorable to Solo, therecord supports his contention that, when looking back to the event, the loose ash thatengulfed him was a direct consequence of the 1999 furnace changes and the danger ofengulfment was or should have been foreseeable by Wellons. See Huber, 430 N.W.2d at 467. Notable among the evidence of foreseeability is the acknowledgment by Wellons'sPresident, Martin Nye, and Vice President, Ken Kinsley, that the engulfment risks presentin the incline duct were foreseeable. (Nye Dep. Tr. at 40; Kinsley Dep. Tr. at 47-49, SI-54.) Solo's evidence, however, is not uncontradicted. There is evidence indicating thatSolo's injury was not foreseeable. Individuals with furnace operation and maintenanceexperience have testified that they have not known of another person being injured in themanner Solo was injured. (See Wellons's Mem. in Supp. at 15-16 (citing Rogers Dep. Tr. at 67; Forseth Dep. Tr. at 167-68; Edwards Dep. Tr. at 35; Chenard Dep. Tr. at 94-95; Buchman Aff. in Opp'n to TJM Ex. 28 (Russell Dep. Tr. at 176-77).) As such, there aregenuine issues of material fact regarding the foreseeability of Solo's injury precluding summary judgment. See Whiteford, 582 N.W.2d at 918; Huber, 430 N.W.2d at 467 ("[I]f there is a specific factual dispute concerning a manufacturer's awareness of a risk[then] the issue [should] be submitted to the jury for resolution."); Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn. 1984) ("Close questions on foreseeability should be given to the jury.").

Wellons's additional arguments that it did not have a duty to warn are unavailing. First, it contends that TJM and Beltrami's OSHA violations and Solo's cleaning from the bottom-up constitute superseding causes of Solo's injury that preclude liability. (Wellons's Mem. in Supp. at 14-16.) Four elements are necessary to establish a cause assuperseding: (1) its harmful effects must have occurred after the original negligence; (2) it must not have been brought about by the original negligence; (3) it must actively work tobring about a result which would not otherwise have followed from the original negligence; and (4) it must not have been reasonably foreseeable by the originalwrongdoer. Regan v. Stromberg, 285 N.W.2d 97. 100 (Minn. 1979). If reasonable mindscan differ regarding foreseeability by the original wrongdoer, the issue of superseding cause must go to the jury. Id. Wellons has failed to meet its burden in establishing asuperseding cause. Not only are TJM and Beltrami's alleged OSHA violations notsuperseding causes,Bilotta, 346 N.W.2d at 625 ("OSHA violations cannot be consideredsuperseding causes which relieve a manufacturer of its duty to produce a safe product."), but reasonable minds can differ on whether cleaning from the bottom-up was foreseeable, given that Wellons designed the furnace with doors located at the bottom and knew thatpeople would enter the furnace to clean it.

Second, relying upon Gray v. Badger Mining Corp., 664 N.W.2d 881 (Minn.Ct.App. 2003), Wellons argues that it had no duty to warn Solo because TJM was asophisticated user of Wellons's furnace. (TJM's Mem. in Supp. at 12-13, 23-24.) Wellons's theory is based on the "sophisticated user" or "learned intermediary" exceptions to the duty to warn. Id. at 885; see In re TMJ Implants Prods. Liab. Lit., 872 F. Supp. 1019, 1029 (D. Minn. 1995); Todalen v. U.S. Chemical Co., 424 N.W.2d 73, 79 (Minn.Ct.App. 1988),overruled in part on other grounds. Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 62 (Minn. 1993). These exceptions provide that where theproduct is sold to a skilled user familiar with the product's risks, the manufacturer's duty to warn is limited, as a matter of law, to that user. See Todalen, 494 N.W.2d at 79;Conwed Corp. v. Union Carbide Chemicals and Plastics Co., Inc., 287 F. Supp.2d 993, 995 (D. Minn. 2003) ("The fundamental tenet of the sophisticated user doctrine is that a manufacturer should be allowed to rely upon certain knowledgeable individuals to whomit sells a product to convey to the ultimate users warnings regarding any dangers associated with the product." (citation and internal quotations omitted)). Because the sophisticated user exception "focuses specifically on the reasonableness of the supplier's reliance on an intermediary to communicate a warning to a product's ultimate user," Conwed Corp. v. Union Carbide Corp., 287 F. Supp.2d 997, 999 (D. Minn. 2003), toinvoke this exception Wellons must "show that it took some reasonable, affirmative stepsto ascertain that [TJM] was a knowledgeable intermediary," Hegna v. E.I. du Pont deNemours Co., 806 F. Supp. 882, 828 (D. Minn. 1992) (citation and internal quotationsomitted). Wellons has not, however, offered sufficient evidence of either TJM'sfamiliarity with its furnace after the 1999 changes, or what reasonable, affirmative steps ittook to ascertain whether TJM was, in fact, a sophisticated purchaser or learnedintermediary. Accordingly, the Court cannot conclude that Wellons was relieved of itsduty to warn.

C. Implied Warranties of Merchantability and Fitness For a ParticularPurpose

Finally, Solo argues that Wellons breached the implied warranties of merchantability and fitness for a particular purpose with respect to the 1999 changes to the furnace. (Pl's Mem. in Opp'n to Wellons at 33-35.) To prevail on a warranty claim, a plaintiff must prove (1) the existence of a warranty, (2) a breach, and (3) a causal link between the breach and the alleged harm. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730-31 (Minn. 1990). Unless excluded, "a warranty that the goods shall be merchantableis implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." Minn. Stat. § 336.2-314(1). By making such warranty, the seller guarantees to the buyer that, inter alia, the goods purchased are fit for the ordinary purposes forwhich such goods are used. Id. § 336.2-314(2)(c). "This warranty is breached when theproduct is defective to a normal buyer making ordinary use of the product."Peterson v. Bendix Home Sys., Inc., 318 N.W.2d 50, 53 (Minn. 1982) (emphasis added). Havingpreviously determined that Solo has offered insufficient evidence of a defective design, the Court determines that he has also failed to demonstrate genuine issues of material factas to Wellons's breach of the implied warranty of merchantability.See Farr v. Armstrong Rubber Co., 179 N.W.2d 64, 89 (Minn. 1970) ("Th[e] definition of defect, appearing incases involving strict liability in tort, is closely related to the concept of defect as itappears in cases dealing with breach of implied warranty.") Accordingly, the Court willgrant Wellons's summary judgment motion on Solo's implied warranty of merchantability claim.

In addition to an implied warranty of merchant ability, "[w]here the seller at thetime of contracting has reason to know any particular purpose for which the goods arerequired and that the buyer is relying on the seller's skill or judgment to select or furnishsuitable goods, there is . . . an implied warranty that the goods shall be fit for suchpurpose." Minn. Stat. § 336.2-315. "A particular purpose differs from the ordinarypurpose for which the goods are used in that it envisages a specific use by the buyerwhich is peculiar to the nature of his business." UCC Comment to Minn. Stat. § 336.2-315 ¶ 2 (internal quotations omitted). The particular purpose envisioned for the 1999 changes was, in part, that they would remedy the furnace's slagging problem by creatingash that was looser and more flowable. (Nye Dep. Tr. at 128-29; Rogers Dep. Tr. at 103-07.) This purpose was accomplished. Accordingly, the Court will grant Wellons'smotion on this claim.

Conclusion

Based on the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED:

1. Defendant Trus Joist MacMillan's Motion for Summary Judgment (Doc. No. 85) is GRANTED IN PART and DENIED IN PART: Count IV of Plaintiffs' Amended Complaint (Doc. No. 19), "Statutory Violations," is DISMISSED WITH PREJUDICE; and

2. Defendant Wellons's Motion for Summary Judgment (Doc. No. 90) is GRANTED IN PART and DENIED IN PART: Counts I and II of Plaintiff's Amended Complaint (Doc. No. 19), "Strict Liability" and"Negligence," respectively, to the extent they allege strict liability andnegligence for defective design are DISMISSED WITH PREJUDICE, and Count III, "Breach of Warranty," is DISMISSED WITHPREJUDICE.